Fox News has been exposed. Documents obtained in the Dominion Voting Systems defamation case against Fox in Delaware Superior Court validate what Fox’s detractors have long claimed: the organization is a propaganda arm of the Republican Party.
Emails and texts among Fox executives and employees, including Rupert Murdoch, Sean Hannity, Laura Ingraham, and Tucker Carlson revealed that Fox relentlessly pushed claims that Dominion rigged the 2020 election even though Fox personnel knew the narrative was false.
Progressives are giddy over the prospect that Dominion could obtain a billion-dollar verdict that might bankrupt Fox. Yet the trial scheduled for April 23 has much broader implications than just crippling Fox News: a jury of twelve ordinary citizens may help decide the future of American democracy.
Facts are the Lifeblood of a Fully Functioning Democracy
Facts are essential to a healthy democracy. Before the Left and the Right can debate critical issues, they need to agree on the basic facts.
“The framers said misinformation should be prosecuted because democracy depends on debating accurate facts,” said Gina Baleria, a journalism professor at Sonoma State University and author of the textbook, Writing and Reporting News for the 21st Century. “[O]ur democracy hangs in the balance. There is a lot of power in words. But one problem is that misinformation tends to be easier to understand than accurate information and that creates a problem. I am very concerned about the road we’ve set ourselves on.”
Disinformation is at the heart of political division in America. How bad is the division? A University of Virginia poll in 2021 found that about 50 percent of Trump voters and 40 percent of Biden voters agreed to some extent that the country should split up, with either red or blue states seceding.
For our democracy to survive, someone or something must choke the flow of disinformation. Our best chance might just be a jury deciding a defamation case in Delaware and awarding massive punitive damages to deter Fox and others from broadcasting statements they know to be false.
Can Dominion Prove Defamation?
There is no such thing as a slam-dunk in civil litigation, but Dominion seems to have evidence amounting to something pretty close. That is why Dominion’s attorneys took the highly unusual step of filing a motion for summary judgment. Dominion is asking the court to take the case away from a jury because the evidence warrants only one conclusion. Normally, defendants file this motion to dismiss all claims against them; courts grant them only occasionally.
If Judge Eric Davis grants Dominion’s motion, then Fox would be liable for defamation and a jury would decide only the amount of compensation.
“It feels like a cut-and-dried case of defamation,” Baleria said even before Fox’s internal communications were made public. “Most of the statements in issue are easy to disprove on their face.”
In the torrent of disinformation that was Fox’s post-election coverage, three outlandish assertions stand out: (1) Dominion is owned by Smartmatic which was founded in Venezuela to rig elections for Hugo Chavez; (2) Dominion’s software flipped votes from Trump to Biden; and (3) Dominion paid kickbacks to public officials to obtain contracts.
According to Dominion, the company was founded in Toronto with the aim of making it easier for disabled persons to cast votes, and it has never done business in Venezuela. Dominion is an American corporation headquartered in Denver, while Smartmatic is a competitor.
Dominion has cited findings from the Cybersecurity and Infrastructure Security Agency, the U.S. Election Assistance Commission, and independent election experts that the 2020 election was completely secure, and no votes were altered.
As to accusations of bribery, Dominion in court filings has stated that the “false assertion that Dominion had bribed Georgia officials—a claim for which [Trump attorney Sidney] Powell never offered a shred of evidence—was manufactured out of whole cloth in order to discredit Georgia Republicans after they publicly rebutted Powell’s and her allies’ false claims attacking Dominion and Georgia’s elections results…”
Dominion’s attorneys sent several letters to Fox in 2020 that debunked these claims. Fox continued to air false election fraud stories from Powell, Rudy Giuliani, and Mike “My Pillow” Lindell in order to boost its ratings and revenues.
Fox’s attorneys have not challenged the basic facts, which is how Dominion was able to file its motion for summary judgment with a straight face. It is often difficult for a public figure such as Dominion to prove the statements that harmed its reputation were made with malice. But the claims broadcast on Fox were verifiably false and Fox was placed on notice that they were indeed false.
That would be enough, but there is more.
Fox Hosts May Have Chiseled Their Own Epitaph
In the discovery process in which litigants exchange documents and take testimony to obtain a complete picture, alternate stories can emerge. Sometimes, one side gets lucky and discovers a smoking-gun document that proves its case. When Fox turned over its internal emails and private text messages, it amounted to a treasure trove of helpful information for Dominion.
The documents indicate that Fox broadcast the disinformation even though its hosts and producers thought them absurd. “Sidney Powell is lying,” Carlson texted to Ingraham on Nov. 18, 2020. “Sidney is a complete nut,” Ingraham texted back. “Ditto Rudy,” she added.
A Fox reporter, Jacqui Heinrich, posted material on Twitter that was critical of Trump’s allegations about Dominion. Carlson pleaded to Hannity, “Please get her fired. Seriously.… What the f**k?” Hannity complained to higher-ups and the tweet quickly vanished.
Other communications indicate that Fox was concerned about ratings, revenues, and the price of its stock. Accurate reporting was not on its radar.
This is textbook malice. The entire case is the defamation equivalent of a rear-end hit in a negligence lawsuit. Drivers have a clear legal duty to maintain a safe distance from the car traveling ahead of them. In those cases, liability is automatic. Similarly, journalists have a legal duty to refrain from intentionally publishing false statements about others that harm their reputation.
Judges rarely take a case away from a jury, but Dominion has made a persuasive argument: under the facts, no reasonable jury could find that the statements did not disparage Dominion or were made in good faith.
Moreover, the emails and texts are the stuff of which punitive damages are made. A jury may accept or reject the $920 million in business losses that Dominion’s financial expert has estimated, but punitive damages are more subjective. A jury could award billions to Dominion because punitive damages would be based on Fox’s bad behavior and substantial revenues and not on Dominion’s lost profits.
Based on court filings, Fox appears to have no credible defense. Truth is an absolute defense to a claim of defamation, but the tweets and emails show that nobody at Fox believed the Big Lie. Absence of malice went out the window when the emails and texts were turned over to Dominion.
From court filings it appears that Fox’s Hail Mary defense is that it accurately reported serious allegations made on Trump’s behalf. The problem with the “neutral reportage” argument is that Fox’s lawyers are conflating cheerleading with reporting. One example is an exchange broadcast on November 8, 2020 between Fox host Maria Bartiromo and Powell:
Bartiromo: Sidney, we talked about the Dominion software. I know that there were voting irregularities. Tell me about that.
Powell: That’s putting it mildly. The computer glitches could not and should not have happened at all. That is where the fraud took place, where they were flipping votes…when they had to stop the vote count and go in an replace votes for Biden and take away Trump votes.
Bartiromo: I’ve never seen voting machines stop in the middle of an election, stop down and assess the situation.
A responsible business would never provide a platform for such troubling allegations without objective evidence. At a minimum, the host would challenge the factual representations instead of agreeing with them.
In other interviews, Fox hosts responded to unfounded accusations not with probing questions, but with “yes” and “right.” This is not reporting, it is supporting.
Judge Davis has previously indicated that Fox’s defense is shaky because its reporting did not appear to be accurate. He seems to understand that reporting damning allegations without offering any proof is not a defense, it is the foundation of a defamation claim.
Will the Case Settle?
Most civil cases settle because businesses do not wish to stake their future on jurors with unknown backgrounds and uncertain prejudices. Also, trials are expensive and appeals take time.
It seems as if Dominion has been dealt a winning hand, but Fox can always deflect a huge verdict against it by waving the bankruptcy card. So any settlement would have to be substantial enough for Dominion to walk away from a promising case but not so excessive that Fox would choose to take a billion-dollar risk that could lead to bankruptcy.
Whether through a monumental verdict or a hefty settlement, the case presents an extraordinary opportunity to nudge us back to a fact-based democracy by deterring Fox and others from publishing lies concerning the issues of the day. However, if Fox were to prevail through a nominal settlement or verdict, all bets would be off.